CAMBODIA: National Laws

Summary: General overview of Cambodia's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national lawArticles 31 and 48 of the Cambodian Constitution require the State to recognise and respect human rights Conventions, including the Convention on the Rights of the Child, and to protect the rights within those Conventions. The Constitutional Council has ruled that this provision requires courts to apply national law in a way that does not violate human rights treaties. The Convention has been cited in domestic courts, but it is not common for it to be cited.

Constitution: Chapter III of the Cambodian Constitution contains a number of rights provisions that apply with regards to age. A number of provisions that specifically address children's rights can be found throughout the Constitution:

Art. 31: requires the State to recognise and respect human rights, including covenants and conventions related to human rights, women's and children's rights

Art. 46: requires the State and society to provide opportunities to women, so that they can get employment, medical care, and send their children to school

Art. 47: enshrines a duty of parents to care for and educate their children to become good citizens and establishes a corresponding duty for children to care for their parents in old age

Art. 48: requires the State to protect the rights of children as stipulated in the “Convention on Children”, particularly the right to life, education, protection during wartime and from economic or sexual exploitation. The State is required to protect children from acts that are injurious to their educational opportunities, health and welfare.

Art. 73: requires the State to give full consideration to children and mothers and to establish nurseries and help support women and children who have inadequate support

Legislation: there is no comprehensive or consolidated Children's Act in Cambodian law, rather provisions of particular relevance to children can be found throughout a number of Codes, Laws. And Decrees. Relevant legislation includes, but is by no means limited to:

The Penal Code

The Civil Code

The Law on Suppression of Human Trafficking and Sexual Exploitation 2008

The Law on the Prevention of Domestic Violence and Protection of the Victims 2005

Case LawCRC JurisprudenceThe Cambodian Constitutional Council considered the CRC in the context of ruling on the applicability of international human rights treaties in its decision dated 10 July 2007 (http://www.crin.org/Law/instrument.asp?InstID=1456).

Compliance with the CRCIn its Concluding Observations of 2011, the Committee on the Rights of the Child welcomed the decision of the Cambodian Constitutional Council which requires the courts to consider the Convention when interpreting national law, but expressed concern that the Convention has rarely been invoked and enforced in domestic courts and tribunals. Similarly, while the court welcomed the fact that the State had begun a process to institute a comprehensive child protection law, it expressed concern that the implementation of child related legislation was weak as a result of the lack of adequate implementation mechanisms.

In depth analysisThe lack of adequate implementation of laws was a major feature of the Committee's Observations, across a range of issues. The Committee noted that the State had adopted laws on Inter-Country Adoption and on the Prevention of Domestic Violence and Protection of the Victims, but expressed concern at the absence of regulations (Prakas) to give effect to the legislation. With regards to trafficking and sexual exploitation, the Committee noted that legislation was in place, but expressed concern that investigations and prosecutions for relevant criminal offences were rarely conducted.

While welcoming the reforms brought in through the Criminal Procedure Code in 2007 and the Penal Code in 2009, including with regards to pre-trial detention and the minimum age of criminal responsibility (14 years), the Committee expressed a number of serious concerns about juvenile justice in Cambodia. Specifically, the Committee expressed concern that there were no children's courts, or specialised judges or prosecutors, and that children were often sentenced as adults and held in adult prisons. The corresponding recommendations urged the State to reform its justice system to implement a specialised system for children, remedying these noted problems as well as instituting adequate legal assistance for children, ensuring a right to review of their detention and providing for alternative sentencing measures such as diversion, probation, counselling, community service and suspended sentences.

The Committee also noted areas of Cambodian law that explicitly contradicted the Convention on the Rights of the Child, specifically the Provisions under the Civil Code (art. 1045) and the Law on the Prevention of Domestic Violence and Protection of Victims that authorised corporal punishment. The Committee urged the State to adopt a legislative prohibition on corporal punishment in all settings and to ensure that the legislation is implemented, including through legal proceedings to enforce the prohibition.

Current legal reform projectsThe process of adopting a juvenile justice law is currently under way, and is expected to come into effect in 2013.

Countries

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